Custody vs. Physical Care

Recently, I’ve seen a spate of men wanting to change “custody.” Although I’m not sure why this is, there are a few things that are important to know.

First, the term “custody” itself can be confusing. “Legal custody” is typically joint, and has to do with the rights parents have to their children’s records—medical, educational, criminal, etc. Legal custody gives them rights to participate in decisions regarding these same areas, as well as other things like extra-curricular activities, religious upbringing, and so forth.

Physical care, on the other hand, has more to do with where the child will live. “Primary physical care” is when the child lives with one parent most of the time; the other parent has visitation (and it may be significant visitation). “Joint physical care” is when the kids spend roughly equal time with each parent. That may mean that the kids are bouncing back from house to house, or it could mean that the children stay in the family home and the parents come in and out.

Obviously, joint physical care requires a significant amount of cooperation on the part of the parents, and an ability to get along and put their children’s needs above their own. This is not always possible, of course.

Modification typically takes one of two forms (in relation to physical care). If there is primary physical care, a modification can request that the court change physical care from one parent to the other. If the original decree awards the parents joint physical care, either parent may seek a modification to primary physical care.

Regardless of which type of modification is involved, the basic requirement is that there has been a substantial change in circumstances not contemplated by the court at the time of the original decree or order. If the modification is from joint physical care to primary physical care, the fact that the cooperation and arrangement hasn’t “evolved” as anticipated (in other words, the trial court thought the parents would be able to “get along,” but that has not proven true) may be grounds for modification.

Keep in mind, too, that the court’s primary concern is the best interests of the children—not the parents, necessarily. The court will look at how disruptive a change in physical care might be, for example (which means generally that the longer a child has resided with one parent, the harder it will be to persuade the court that a move is in his/her best interest). The court will look at not just the change in the home, but whether it will affect schooling, nearness to friends and family, a new city or state, and so forth.

That does not mean that a move on the part of the custodial parent will automatically justify a modification. Courts have been reluctant to prevent parents from moving when there are good reasons for the move (e.g., economic, the need to care for aging parents, moving with a spouse who has changed jobs, etc.). But it may be a factor.

The other thing I always tell parents is to take the high road. I don’t care what the other parent is doing—I want my client doing the right thing. Following are some of the specific ways to do that:

Don’t fight with your ex, especially in the presence of your children.

Don’t “badmouth” your ex to your children.

To the extent possible, cooperate with your co-parent. Even in situations where it is not possible, be respectful and civil.

Always keep in mind what is best for your child(ren), and behave accordingly.

Don’t be unreasonable.

Don’t do things with the sole intention of hurting your ex, or making things difficult just to make them difficult.

You do not have to be a “doormat,” of course, but the court will hear evidence of each parent’s behavior and interactions with the other. It will always work in your favor to be the parent who is trying to do the right thing. There are court opinions awarding physical care to the parent who demonstrates the greatest ability to work with the other. So yes—it’s important.

There are, certainly, times where modification is appropriate. But make sure you are doing it for the right reasons; in other words, when it is in your child’s best interest.

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